S. Kirpal singh vs The Deputy Commissioner, Ferozepore and another

Shamsher Bahadur, J.—In this petition under Article 226 of the Constitution of India the Petitioner Kirpal Singh seeks to set aside the notice issued by the first Respondent on 1st of June, 1962, calling upon the Market Committee, Moga to elect a producer member for the Panchayat Samiti Block Moga II at a meeting to be held on 18th of June, 1962, under the Presidentship of the second Respondent Shri R. L. Garg, P. C. S., Sub-Divisional Officer, Moga.

Under Sub-section(1) of Section 3 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961, which came into force on 20th of April, 1961 (hereinafter referred to as the Act) the Government may direct that with effect from a date as may be specified, there shall be constituted Panchayat Samitis either for every tahsil in a district or for every block in a district. By a notification published on 28th of April, 1961, a Panchayat Samiti was constituted for Moga II Block. Section 5 of the Act sets out the constitution of the Panchayat Committee which is to compose of primary, associate, co-opted and ex-officio members. The constitution of the Panchayat Samiti for a Block forms the subject-matter of Sub-section (2) of Section 5, and under Sub-clause (iii) of Clause (a), on member of the Samiti is to be a representative of "the Market Committees in the block", and is to be elected "by the members of such committees from amongst producer members residing within the jurisdiction of the Panchayat Samiti". By a notification of 2nd of May, 1962, the State Government declared the area of the Market Committee, Moga , "to be the revenue estates of all the villages falling in Moga tahsil except the villages of Panj Garian Khurd and Sibian". Thereafter, the first Respondent (Deputy Commissioner, Ferozepore) issued the impugned notice on 1st of June, 1962, calling upon the Panchayat Samiti Moga II in Ferozepore district to elect a member from amongst the producer members of the Market Committee, Moga, functioning in the block. The meeting was to be convened on 18th of June, 1962 under the Presidentship of the second Respondent Shri R L. Garg, Thaman Singh, who is not a party to this petition, was elected a member and notified as such on 28th of August, 1962.

The present petition was filed on 14th of June, 1962, to question the validity of the notice. The admitting Bench issued a rule but declined to continue the ad interim order staving the election. The election was held on 28th of August, 1961 though by an order of a Bench of this Court of 3rd of October, 1962 the gazetting of the election was stayed.

It is contended by Mr. Tuli, the learned Counsel for the Petitioner that the Market Committee. Moga, having been constituted a long time after the notification of 28th April 1931. It could not be called upon to elect a primary member as a representative to the Panchayat Simiti. In support of this contention it is submitted that Rule 30 of the Punjab Panchayat Samiti (Primary Members) Election Rules, 1961, lays down that "as soon as the notification to constitute Panchayat Samitis in a district, under Sub-section (1) of Section 3, has been issued the Deputy Commissioner shall for each block perepare a list of members of each Market Committee functioning in that block". The Market Committee did not exist when the notification was issued on 28th of April, 1961 and the Deputy Commissioner could not therefore, call upon the members of the Market Committee, Moga, to elect a member as their representative for the Panchavat Samiti. The market Committee. Moga, was brought into existence in consequence of the notification of 2nd of May, 1962 and Mr. Tuli argo''s()sic that the Samiti elections which have to take place immediately after the notification constituting it could not take into account the Market Committee, Moga, as a constituency which did not exist at the time of notification. It appears that Thaman Singh had previously been declared to have been elected as a primary member of the Panchayat Samiti, Moga, from amongst producer members of the market committees in a Gazette, Extraordinary of 28th of August, 1961. At that time the Market Committee Moga did not exist and in Civil Writ No. 1314 of 1961, Grover J. to challenge the election allowed the petition, and there was no representation on behalf of the Respondent. That election was set aside by Grover J. on the short ground that the market committee did not exist. A market committee was, however, brought into being in pursuance of the notification, of 2nd of May, 1962, and it is not suggested that this was in any way in contravention of the Act or the statutory rules. This Court is asked to hold on the language of Rule 30 that the election of all the primary members should have been held soon after the notification of 28th of April, 1961. In my view, there is no support for this suggestion. Mr. Tuli has relied on a Division Bench authority of this Court in Mama Ram v. The Deputy Commissioner, Hissar I.LR. 1962 P&H 392. It was held by the Bench in this case that the words "market committees in the block" as used in Section 5(2)(a)(iii) of the Act means the "market committees situated within the block". As stated at page 400 by Capoor J., speaking for the Bench, "if no market committee is situated within a certain block nor does any producer member of any market committee reside within the block there cannot possibly be any representation from the category mentioned in Sub-clause (iii)". This observation of the Bench cannot be construed to mean that no market committees could be formed after the notification constituting the Samitis or that no election could take place from amongst the members of the market committees formed after the notification u/s 3(1). Indeed, it would be undemocratic to deny the right of representation to a duly constituted market committee on the Panchayat Samiti. It is stated in paragrah 8(b) of the written statement that a list of members of the Market Committee, Moga, functioning in Block Moga II was prepared and sent to the Sub-Divisional Officer, Moga, who presided over the election. This procedure appears to be in conformity with the rules and no exception could be taken to-it. The moment that a market committee was duly constituted there came to be a vacancy which had to be filled. Under Sub-section (1) of Section 12 of the Act, "when the place of a primary or co-opted member becomes vacant by resignation, death or othewise, a new member shall be elected or co-opted, as the case may be, in the manner provided in Section 5". In other words, the section contemplates that a vacancy created either by death, resignation or otherwise has to be filled by election or co-option as the case may be. The submission of Mr. Tuli that the Government is disabled from creating new market committees after the notification u/s 5 and the ensuing contention that no election could take place from amongst the members of such committees does not derive any assistance either from the statute and the rules made thereunder or by any process of reasoning.

It is now well settled that for the exercise of extraordinary jurisdiction of this Court in writ proceedings, two essential conditions have to be satisfied. In the first place, the order impugned must be without jurisdiction or in excess of it or in violation of principles of natural justice, and secondly, such an act, ommission, error or excess must have resulted in manifest injustice. Reference may be made in this connection to the authority of their Lordships of the Supreme Court in G. Veerappa Pillai v. Raman and Raman Ltd. A. I. R. 1952 S. C. 102. Even assuming that the impugned notice was outside the competence of the first Respondent, it cannot conceivably be maintained that the election of Thaman Singh who is not even made a party to this petition has resulted in any manifest injustice to any one and least of all to the Petitioner who claims to be voter of the Samiti. It is not denied that the election if it had taken place a year earlier would have been in order. The formation of the market committee at a later stage should not disentitle the members of it to elect their representative on the Panchayat Samiti on being called upon to do so after the committee has been duly constituted.

This petition, in my view, has no merit in it and must be dismissed with costs.